The thinking behind this blog is really simple: The guilty should be prevented from reoffending and the innocent should not be convicted -- not very complex but often not achieved.

The spotlight is also thrown on feral law enforcement

Thursday, April 02, 2009

Forensic science fraud?

The nude, lifeless body of 23-month-old Haley Oliveaux lies awkwardly across a metal autopsy table in a Mississippi morgue. A red block propped under the little girl’s shoulders elevates her chest, causing her head to tilt backward and her arms to spill off to the side. The toddler’s head hangs at an angle that causes her fine blonde hair to fall away from her face, exposing her right cheek, the right side of her forehead, and her hairline. There is light bruising around her ear and right eye, but there are no visible scrapes, cuts, or abrasions on the right side of her face. Most notably, the skin of her right cheek is smooth and unblemished. In a heavy drawl, Michael West, a dentist employed by prosecutors and coroners to conduct post-mortem examinations, announces the date and time: December 18, 1993, 9:35 p.m.

Oliveaux drowned in a bathtub that morning in West Monroe, Louisiana, while in the care of her mother’s boyfriend, Jimmie Duncan. Duncan said he was washing dishes at the time. In an unusual decision, her body was transported 120 miles east to Rankin County, Mississippi, for examination. Although the state of Louisiana had its own medical examiners, the district attorney and police chief of West Monroe wanted the autopsy to be performed by Steven Hayne, a controversial physician who was able to dominate Mississippi’s autopsy referrals, critics say, by drawing conclusions prosecutors wanted to hear. Duncan already faced charges of negligent homicide for leaving the girl alone in the tub. In Hayne’s initial examination he claimed to find bite marks that hospital doctors failed to notice. He then called for further analysis from West, his frequent collaborator.

West, a dentist from Hattiesburg, Mississippi, is a specialist in bite mark evidence. During the previous three years, he and Hayne had helped produce murder convictions in two strikingly similar cases, finding previously undetected bite marks on dead little girls and linking them back to the boyfriends of the girls’ mothers. No one knew at the time that the convicted killers—one of whom, Kennedy Brewer, lived on death row for 14 years—would be exonerated and freed in 2008 when DNA tests showed a third man was responsible for both deaths. Nor could many have known at the time that West and Hayne eventually would be discredited by their own professions, and barred from conducting new examinations in their home state.

But the Oliveaux case continues to have repercussions today because the research and testimony West and Hayne produced helped put yet another man on death row, where he remains to this day. West and Hayne would go on to testify in thousands more cases. The states where they testified most often—Louisiana, and particularly Mississippi—still haven’t fully acknowledged the extent of the damage the two men have done to their respective criminal justice systems. The decades-long legislative tilt in favor of prosecutors has made it all too easy for bad actors to do great harm.

West examined Oliveaux twice, on December 18 and 19, 1993. As was routine with Hayne and West, they shot video of the procedure. What’s not routine is that the video is seeing the light of day, after being obtained by reason. (You can view a portion of the video at reason.com/westvideo.)

For the first five minutes, West examines Oliveaux’s body, noting bruises, signs of livor mortis (the pooling of blood after death), abrasions, and contusions. During this time, West makes no mention of any scrapes or abrasions on Oliveaux’s cheek, nor are any apparent on the tape.

At 4:57, there’s a break in the video, marking the lapse between the two exams. At that point the camera returns to Oliveaux’s face. Strikingly, where just moments before the video showed no blemishes at all, there’s now a conspicuous bright red abrasion to the right of Oliveaux’s mouth.

West’s hand then enters the frame, holding a plaster dental mold taken earlier that day from Jimmie Duncan. Using the replica of Duncan’s teeth as a weapon, West repeatedly presses and jams the front bite plate directly into Oliveaux’s cheek. Over two minutes, he does this 17 times. At 6:57, he starts dragging Duncan’s mold across Oliveaux’s face, beginning near her lips, then scraping the plaster teeth down her face to her jaw. He does this for another minute. West next moves to Oliveaux’s elbow and uses the cast to impress Duncan’s dentition onto an old bruise hospital records show she suffered weeks before her death.

At the 9:32 mark, West asks someone in the room to turn out the lights. A fluorescent black light flicks on. West is now employing a much-ridiculed technique he invented for identifying bite marks, which he modestly calls the “West Phenomenon.” He claims that by using a black light and yellow goggles, he can find bite marks, knife serrations, and other tears and abrasions to the skin that no other expert can see. With the lights out, West continues to jam the plaster cast into the girl’s cheek, elbow, and arm. Over the course of the 24-minute video, West pushes the cast of Duncan’s teeth into the girl’s body at least 50 times.

‘He’s Tampering With the Evidence. It’s Criminal.’ “This is the best documentation I’ve ever seen of Dr. West’s junk bite-mark comparisons,” says Michael Bowers, a deputy medical examiner for Ventura County, California, after viewing the video. A past chairman of the American Board of Forensic Odontology’s Exam and Credentialing Committee, Bowers also worked with the Innocence Project to help free Kennedy Brewer.

How did abrasions that were not apparent on December 18 suddenly appear bright red the following day? “Dr. West created them,” Bowers says. “It was intentional. He’s creating artificial abrasions in that video, and he’s tampering with the evidence. It’s criminal, regardless of what excuse he may come up with about his methods.…You never jam a plaster cast into a possible bite mark like that. It distorts the evidence. You take a photograph, or if there are indentations, you take an impression. But you don’t jam plaster teeth into them.” After watching the video, Bowers offered to submit an affidavit for Jimmie Duncan’s defense.

David Averill, a former president of the American Board of Forensic Odontology, concurred. “The video is troubling,” Averill says. “I don’t know how you can explain where those marks come from. And there’s just no justification for him to push the cast into the skin like that. That isn’t an acceptable way to perform a bite mark analysis.”

San Diego forensic pathologist Harry Bonnell, who was hired by Duncan’s post-conviction attorneys last summer, also concludes that West broke the law. Bonnell formerly served on the ethics committee of the National Association of Medical Examiners; he has worked for the Armed Forces Institute of Pathology, and he now sits on the board of trustees for the advocacy group Parents of Murdered Children. He has previously described Hayne’s work on homicide cases as “pathetic,” “near-total speculation,” and “border[ing]…on criminal negligence.”

By email, Bonnell says: “If what I am seeing on the video is accurate, someone is using the mold of Duncan’s teeth to create an apparent bite mark; this, in my mind, is criminal tampering with evidence.” In his affidavit for Duncan’s defense, Bonnell writes, “The injury to the cheek of Haley Oliveaux is not seen in hospital photos…and was generated by using a mold of Duncan’s teeth to create a bite mark.” Of the alleged mark on Oliveaux’s elbow, Bonnell writes that it “does not appear to be acute or occurring at the time of death; it appears older…and is certainly not a bite mark.”

Richard Souviron, a bite mark examiner in Miami and a founding member of the American Board of Forensic Odontology, testified for Duncan’s defense at trial. Inexplicably, Duncan’s trial attorneys, who had access to the video, never showed it to him. After viewing the video last year, Souviron filed a new affidavit that describes “Dr. West, violently and repeatedly, forcing a mold of Jimmie Duncan’s teeth into Ms. Oliveaux’s right cheek.” In doing so, Souviron continues, “Dr. West creates a mark that was not previously present. Dr. West’s behavior and methods are absolutely not supported by any scientific standards or protocol.” Souviron adds that the abrasions could not have been created by Jimmie Duncan but rather “were created by the flagrant misconduct of Dr. Michael West.”

Yet the video was never shown at trial. And the allegedly manufactured bite marks proved to be a critical piece of evidence in Duncan’s 1998 conviction on charges of rape and murder. He has been on death row for 10 years, awaiting lethal injection, in part because of evidence that several prominent forensic specialists say was fabricated.

‘The Manifestations of a Bite Mark’

Haley Oliveaux did not have a happy young life. Her mother was divorced. Her father was in prison. In November 1993, she was twice taken to the hospital after suffering seizures. On November 29, she was again admitted to the hospital, this time after allegedly pulling a chest of drawers down on top of herself while climbing to reach for a piggy bank. She suffered multiple skull fractures in the incident and, notably, some bruising on her left elbow. An investigation by the West Monroe Police Department and Ouachita Parish Child Protective Services found no evidence of abuse and no reason to doubt the piggy bank story.

Three weeks later, on December 18, Allison Oliveaux, Haley’s mother, went to work at 8:45 a.m., leaving her daughter in Duncan’s care. According to Duncan, he gave Haley a bath later that morning and left her in the bathtub while he washed some dishes. Around 10:30 a.m., Duncan said, he returned to the bathroom to find her motionless in the tub. Duncan said he rushed Haley to the house next door. Neighbor Floyd Bennett tried to administer CPR while his son called 911. The ambulance crew described Duncan as hysterical and weeping. Haley was taken to the hospital and pronounced dead shortly thereafter. After admitting to the police that he’d left Haley alone in the tub, Duncan was arrested and charged with negligent homicide. Ouachita Parish law enforcement officials then contracted the autopsy to Hayne.

For the better part of two decades, Steven Hayne and Michael West have served as expert forensic witnesses for the state of Mississippi and occasionally in Louisiana. Both have come under intense scrutiny for questionable professional practices and dubious testimony—West off and on for 15 years, Hayne mostly in the last two. reason published an investigative article about Hayne in November 2007, describing his impossible workload (by his own account, he conducts 1,200 to 1,800 autopsies per year), his relationship with West, and his reputation as a rubber stamp for prosecutors and plaintiffs’ attorneys.

Hayne isn’t even board certified in forensic pathology. He took the American Board of Pathology’s certification exam in the 1980s, failed it, and never attempted to take it again. In August 2008, after two convicts who had been rung up based on Hayne’s testimony were exonerated and new questions about his testimony in other cases began to surface, Mississippi officials finally removed Hayne from the state’s list of medical examiners approved to perform criminal autopsies, mostly (though, as we’ll see, not totally) ending his career. (For a complete list of reason’s Hayne-related articles, go to reason.com/hayne.)

By 2008 West, too, had been largely discredited. His colleagues ridiculed the “West Phenomenon” and his bizarre claims defending the method. West once bragged he could positively trace a half-eaten bologna sandwich found at a crime scene back to the defendant. He compared his proficiency with Itzhak Perlman’s, his error rate with Jesus Christ’s. As early as 1994, an ethics committee of the American Academy of Forensic Sciences unanimously recommended that West be expelled from the organization. West resigned instead. His work was later criticized in national publications such as Newsweek, the ABA Journal, and National Law Journal.

According to trial testimony, Haley Oliveaux was one of Hayne’s first autopsies for Ouachita Parish. Among those who traveled the 120 miles to observe his work were the West Monroe police chief, a police detective and captain, and two assistant district attorneys. Although it isn’t particularly uncommon for prosecutors or police to witness an autopsy, it is unusual for them to travel two hours and cross state lines to do so. The practice of a forensics expert speaking with police and prosecutors before conducting an autopsy is strongly discouraged by professional organizations such as the National Association of Medical Examiners, because it can bias the examiner’s conclusions. At Duncan’s trial five years later, one of his attorneys likened the Oliveaux autopsy to a job tryout. If that was the case, Hayne apparently passed. By 1998 the bulk of Ouachita Parish’s criminal autopsies, 30 to 40 a year, were outsourced to Hayne.

After his preliminary autopsy the evening of December 18, 1993, Hayne claimed to have found “the manifestations of a bite mark.” He notified Ouachita Parish authorities, who then obtained a warrant to make a mold of Duncan’s teeth. Later that night, West conducted the preliminary examination seen in the first five minutes of the video. The next day, armed with the cast of Duncan’s teeth, West worked over the dead girl’s corpse.

Because the videotape was never admitted into evidence, it isn’t clear who besides West was in the room when it was made. Hayne testified that he helped West take photographs of the bite marks, which suggests he might have been present, but there’s no way of knowing which if any of the two days’ of footage was observed by the busy medical examiner. What is clear, is that Hayne testified under oath to finding bite marks.

After the autopsy and examination by Hayne and West, the Ouachita Parish District Attorney’s Office raised Duncan’s charge to capital murder. Citing the alleged bite marks, among other evidence, prosecutors accused Duncan of raping Haley in the bathtub, forcing her head underwater, biting her, and drowning her.

‘Abrasions Cannot Appear, Then Disappear, and Then Reappear’

West himself never testified at Duncan’s trial. It was during the years between his examination of Oliveaux in 1993 and Duncan’s trial in 1998 that the dentist’s methods started coming under fire. By 1998 Duncan’s prosecutors recognized the baggage West carried and dropped him from the case. Instead, the prosecution turned to another forensic odontologist, Lowell Levine, who turned them down. Later, Levine explained in a deposition that he refused the job because he had been involved in a prior “problem case” with West (one that led to another conviction followed by an exoneration) and he didn’t “really need to get involved in this again.”

The prosecution then turned to Neal Riesner, a dental examiner from Scarsdale, New York. Relying on the photographs West took after the examination recorded in the video, Riesner testified that the marks on Oliveaux’s cheek were indeed bite marks, and that “to a reasonable degree of medical certainty,” he could determine that they were Duncan’s. He also testified that the marks on the ear and elbow were “consistent” with Duncan’s dentition.

Despite West’s disintegrating reputation and the fact that the bite mark evidence was derived from his work, Louisiana Fourth Judicial District Judge Charles Joiner ruled in 1995 that the video contained “no exculpatory evidence favorable to the defendant”—a finding hotly disputed by all the forensic specialists consulted for this article—and that therefore prosecutors didn’t need to hand it over. The state maintained at first that “the defense is somehow hoping to drag Dr. West into this case in order to create ancillary issues for the jury,” but by 1996 prosecutors relented and gave defense attorneys the video. But Duncan’s attorneys never showed the video to their own dental examiner. This point would become crucial, since the bite marks were the only physical evidence used to elevate Duncan from a negligent guardian to a lethal child rapist.

According to Duncan’s post-conviction attorneys, no witness accounts taken before West’s examination of Oliveaux mention any sort of marks on her cheek. Hospital photos taken shortly after her death also show no marks. (They do, somewhat confusingly, show her intubation tube held in place by a piece of red tape attached to her cheek—but no abrasions.) Statements from hospital doctors, social workers, police officers, and Duncan’s next-door neighbors taken before December 19—i.e., before Hayne and West declared that they had found bite marks—also make no mention of any cheek wounds. According to Duncan’s current attorneys, many of these early statements were never turned over to his trial attorneys.

It is only in interviews and police statements taken after West’s examination of Haley Oliveaux that witnesses began to remember seeing “red marks” on her cheek, raising the possibility that these memories were suggested, intentionally or otherwise, by prosecutors or police investigators.

In early interviews with police and social workers, for example, neighbor Floyd Bennett made no mention of any marks or abrasions on Oliveaux’s face, despite performing CPR on the child. At Duncan’s trial five years later, however, Bennett recalled seeing red marks on the girl’s cheek. Initial statements taken from an investigator with the Ouachita Parish Coroner’s Office, a state social worker, and hospital doctors document several of Haley Oliveaux’s injuries, but none mentions the marks West claims to have found on her cheek. According to a brief prepared by Duncan’s current attorneys, one police officer specifically testified at a preliminary hearing that he saw no marks on Oliveaux’s face, then changed his testimony five years later at Duncan’s trial.

Perhaps more damning, in a December 18 letter to the Ouachita Parish Coroner’s Office recording his initial observations, West himself made no mention of the cheek abrasions. It wasn’t until the entry stamped the next day that he brought them up. Bonnell elaborated on this discrepancy in his affidavit for Duncan’s defense. “The injuries on the child’s face are abrasions, which form almost immediately,” he wrote. “Therefore the fact that the marks are not present in the hospital photographs and in the beginning of the West Video makes it medically impossible that Jimmie Duncan could have inflicted [them].…Abrasions cannot appear, then disappear, and then reappear at the morgue.”

The bite marks were the only physical evidence directly suggesting that Duncan abused Oliveaux. Duncan agreed to provide urine and blood samples for a rape kit, but doctors found no biological evidence from Duncan inside the girl. Searches of Duncan’s clothes also turned up no evidence of physical or sexual abuse. No blood, no hair, no tissue.

The most disturbing of the injuries found on Haley Oliveaux the night she died were some lacerations to the outside of her rectum. Those, together with the bite marks, undoubtedly weighed heavily on the jury. As the prosecution showed blown-up photos of Oliveaux’s lacerated rectum, Hayne testified that the injuries were “consistent with” penetration by a penis, though he couldn’t rule out penetration by another object. Another state witness, Edward Gustavson, a pediatrician with no forensic pathology certification, stated more definitively that the lacerations could only have been caused by a penis, along with the trauma from an assailant’s pelvis grinding against Oliveaux.

Bonnell says both are wrong. “Dr. Gustavson’s explanation…is ludicrous, and probably based on fantasy, definitely not scientific or medical fact,” he writes. Bonnell adds that penetration from a penis or similar-sized object would have resulted in significant anal tearing and perforation, neither of which were found. Duncan’s attorneys speculate that the injuries were caused by a hard stool, an explanation Bonnell finds plausible.

Bonnell says he can’t conclusively rule out that the injuries were caused by sexual abuse. The problem, he says, is that it would be impossible for him to reach a definitive conclusion about what caused the rectal injuries without examining the microscopic slides of the anal tissue. Those slides, made by Hayne, are now nowhere to be found.

In response to a 2008 court order to produce the slides, Hayne first said he didn’t have them, because he had sent them to the Mississippi State Crime Lab in Jackson. But the crime lab told Duncan’s lawyers it has never possessed the evidence. Even if Hayne somehow managed to lose the slides (an egregious mistake, given their importance), he should have a written record of what they showed. According to Duncan’s post-conviction attorneys, Hayne hasn’t produced any of that documentation either.

Duncan had no prior allegations or charges of sexual abuse. On the first day of the trial in 1998, Duncan’s attorneys learned through outside sources that a convicted sex offender lived in Duncan’s neighborhood and was suspected of molesting a child who lived next door. So even if Oliveaux’s anal injuries were caused by sexual abuse, the only piece of physical evidence linking Duncan specifically to an assault on the girl is the bite marks. Which, according to every outside forensic expert who has viewed the video, were created by Michael West.

‘I Was to Say That Jimmie Had Confessed to Biting the Child’

The other major piece of evidence against Duncan was testimony from a jailhouse informant who claimed that Duncan confessed to his crime while behind bars. Michael Cruse testified that he shared a jail cell with Duncan for one day in late December 1993. (Cruse also claimed another inmate in the same cell confessed a felony to him, according to the letter he wrote to prosecutors.) Duncan’s current attorneys have since obtained an affidavit from Michael Lucas, another inmate in the cell that day, who says that not only did Duncan not confess, he repeatedly asserted his innocence, despite Cruse’s constant attempts to elicit a confession.

Since then, two other inmates have reported being asked by Ouachita Parish law enforcement officials to lie about hearing Duncan confess. One of them, Charles Parker, who had worked as an informant for the FBI, wrote a letter of complaint to the district attorney’s office about the incident. In a later interview with Duncan’s post-conviction attorneys, he described how an investigator named Jay Via approached him and fed him information about Duncan’s case. “He gave me details of the crime, saying that the child was less than two years [old] and that she had been anally raped,” Parker said “He told me that when I came forward I was to say that Jimmie had confessed to biting the child while he was raping her.”

Parker said that in exchange for his testimony, Via promised “he would talk to the DA and would get my sentence reduced.” Parker said he refused, because he thought Duncan was being railroaded. Via then allegedly threatened him with repercussions.

The prosecution not only never followed up on Parker’s initial letter, they never turned it over to Duncan’s trial attorneys—yet another violation of their legal requirement to share exculpatory evidence. The letter wasn’t discovered until last year, when Duncan’s post-conviction attorneys found it in the district attorney’s case file.

Police notes taken during an interview with the informant Cruse say that he asked for “ammunity [sic] from pros.” Cruse’s own letter offering to testify also mentioned his desire for leniency with respect to a burglary charge he was facing. Neither of those documents were turned over to Duncan’s trial attorneys either. By the time of Duncan’s trial, Cruse was facing a new charge of theft. That charge was dropped a month after he testified.

Inspector Via has a history of eliciting false confessions. In 1983 a man named Barry Beach was arrested in Ouachita Parish for contributing to the delinquency of a minor. After three days of intense questioning, he confessed to Via that he had killed three women in Louisiana and one in Montana. Beach’s lawyers were later able to prove Beach couldn’t have committed the three murders in Louisiana, because wasn’t even in the state at the time. Beach still stands convicted of the fourth murder, which took place in Montana, though there are mounting questions about that one too.

Incredibly, Via then managed to elicit two more false confessions to one of those same murders.Months after the Beach confession, Via got convicted felons Henry Lee Lucas and Ottis Toole to confess to one of the murders Beach didn’t commit. Just last year, a fourth man named Anthony Wilson was arrested for that murder after DNA tests linked him to the crime scene.

‘Just Because Dr. West Has Been Wrong a Lot…’

It is impossible to say with certainty whether or not Jimmie Duncan murdered Haley Oliveaux. He was alone with the girl when she died, and at a minimum he behaved negligently, even recklessly. There were no witnesses. It isn’t a matter of who killed Oliveaux; it’s a matter of whether she was killed at all, or if her death was an accident. There will never be a DNA test either to confirm Duncan’s conviction or clear his name, because there simply isn’t any DNA evidence to test.

What is clear is that Duncan didn’t get anything approaching a fair trial. He was convicted based on physical evidence tampered with and allegedly manufactured by Michael West plus hearsay evidence possibly fabricated by a motivated jailhouse informant. Exculpatory evidence was withheld from or bungled by the defense. Duncan’s case is teeming with egregious prosecutorial and police abuses and bad science. At the very least, he deserves a new trial and a cell far away from death row.

As for West and Hayne: Their caseloads may have been cut, but their damage is ongoing. West continued to testify in Mississippi courtrooms until at least 2000. In 2001 a defense lawyer decided to test West by sending him a cast of an accomplice’s teeth along with photographs of alleged bite marks from a homicide case that had already been solved. Sure enough, West sent back a videotaped report confidently claiming the completely unrelated dental mold and bite mark photos were a match. Even after all of this, the Mississippi Supreme Court continued to uphold West’s testimony in murder cases. In a 2003 opinion the court said, “Just because Dr. West has been wrong a lot, does not mean, without something more, that he was wrong here.” As late as 2007, prosecutors were still relying primarily on West’s testimony to keep Kennedy Brewer in prison, even though by that point DNA evidence had excluded Brewer as the rapist. (West and the prosecutor insisted Brewer must have bitten the victim while someone else raped her.) Despite the exonerations of Brewer and fellow falsely convicted Hayne/ West case Levon Brooks, Mississippi officials still refuse to conduct a thorough review of all the trials at which West has testified. The New York chapter of the Innocence Project is reviewing hundreds of such cases.

Despite years of complaints from authorities including the Mississippi state medical examiner, Hayne managed to fly mostly under the radar until the 2007 reason article and the 2008 DNA-based exonerations. After those cases, the Innocence Project mounted an aggressive public campaign against Hayne, culminating with a complaint to the Mississippi State Board of Medical Licensure seeking to revoke Hayne’s medical license. Although that complaint was rejected, Mississippi finally stopped using Hayne to perform criminal autopsies in August 2008. Still, the state agreed to allow the disgraced examiner to complete a backlog of some 600 open cases and to continue testifying in Mississippi courts if required. As with West, state officials said they had no plans to reopen or investigate any of the thousands of cases in which Hayne has testified.

The criminal justice system is not and cannot be perfect. The fact that bad evidence or fraudulent experts sometimes slip through the cracks isn’t an indication that our courts are broken. But when public officials are made aware of such problems and do nothing about them, it raises more profound questions about justice and integrity. In Steven Hayne and Michael West, the legal system has two prolific “expert” witnesses who have testified in thousands of cases, despite troubling and persistent questions about their credibility. The two are now implicated in creating and endorsing manufactured evidence in a capital murder case. How seriously officials in Louisiana and Mississippi take these allegations will go a long way toward showing whether there are more fundamental flaws in either or both states’ commitment to justice and fairness.

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Dedication

In memory of Fatty Arbuckle, a good and innocent man whose movie career as a comedian was ruined by an opportunistic prosecution. The woman he was accused of murdering almost certainly died of natural causes. He was eventually cleared but the damage was done.

A thought

I love the Mae West story where some judge wearing a robe during the middle of the day, and seated in a high chair peered down and asked her, 'Are you showing contempt for my court?' To which she replied, 'I’m doing my best not to show it, your honor.' Maybe we need to give up trying to not show it."